The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the motion for summary judgment filed by defendant River City Construction ("River City") (Docs. 30 & 31). Plaintiff Barbara L. Crisp Sumner filed a pro se response to the motion (Doc. 33), but the Court allowed her to file a substitute response after counsel entered her appearance (Docs. 41 & 42). River City has replied to that substituted response (Doc. 45).
I. Summary Judgment Standard
Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008). The standard is applied with special scrutiny in cases, such as discrimination cases, that often turn on issues of intent and credibility. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). Where the moving party fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e)(2); Celotex, 477 U.S. at 322-26. A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Michas, 209 F.3d at 692. Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252; accord Michas, 209 F.3d at 692.
Viewed in Sumner's favor, the evidence in this case establishes the following relevant facts.*fn1
In 2006, Sumner, a female, was a member of a union, Laborers Local 773, that had a collective bargaining agreement with River City. When River City needed workers for a job, it notified Local 773, who then selected the workers and sent them to the job site, at which time they became employees of River City for as long as River City needed them on the job. If River City did not wish to use a particular worker, it would refuse to employ that worker and would request that the Local 773 hiring hall send another. It also had the prerogative to request that certain workers be sent or not sent to the job or that workers of a certain demographic be sent to fulfill diversity requirements set out by contracting property owners. Local 773 essentially acted as River City's personnel department.
On or about March 3, 2006, Stewart Childress, general foreman of a project to demolish Morris Library on the Carbondale, Illinois, campus of Southern Illinois University, requested Sumner be assigned to the job. Childress, also a laborer, was the "key man" on the project and had worked solely for River City for seven years. As the general foreman, he directed and instructed the laborers in their job tasks, had the authority to request workers from and return workers to the hiring hall and assumed the duties of the site supervisor, Darrell McClerren, when he was unavailable. Childress asked for Sumner in response to River City's request for a black female laborer to perform demolition work. Childress assigned Sumner the job of removing the ballasts from florescent light fixtures and provided nearly all Sumner's work instructions during her employment. Sumner was not provided a packet of rules, regulations and other information (such as a sexual harassment policy) as she usually had been when commencing other jobs for other employers, and no sexual harassment policy was posted at the job site.
Sumner experienced a number of unpleasant incidents while she was working for River City. Shortly after she began working on the job, Sumner observed Childress, Gary McComb (a fellow laborer serving as union steward on the project) and Bobby Bower (a fellow laborer) pulling and plucking the breasts of Sheila Gibbs, a female laborer, in the elevator. After that incident, Sumner refused to take the elevator at work and instead used the stairs.
Also around that time, while Sumner was walking down the stairs from the fifth floor to the lunch area, McComb placed a feminine pad colored to look as if it had been used in Sumner's lunch box. When Sumner opened her lunch box, those present, including McClerren, began to laugh. She threw away the maxi-pad.
Later, on March 15, 2006, Childress approached Sumner from behind while she was bent over on the floor working and placed a metal rod between her legs and raised it up to touch her crotch. Sumner immediately told Childress not to do that anymore. Sumner reported this incident to Chuck Aly, Local 773's business manager, who said he would talk to Childress. No one at Local 773 ever reported the complaint to River City management.
On another occasion, Sumner observed McClerren and Kenny Hamm, a River City supervisor and brother to River City Vice President Steve Hamm, holding Gibbs down while Childress tried to unfasten her pants. On a number of other occasions, in McClerren's presence, McComb, Kenny Hamm and/or Bower straddled a picnic table bench on either side of Gibbs and acted like they were having sex with her; each time Sumner responded by leaving the table and having lunch by herself in her car. Sumner also observed Childress and Bower sticking feminine pads on Gibbs' back and often heard McClerren, Kenny Hamm and Bower tell sexual jokes. Sumner responded by trying to stay away from her co-workers.*fn2
Sumner never complained to River City management about any of these incidents because she believed that River City supervisors were responsible for the incidents (Sumner believed Childress was her supervisor since he called her to the job and gave her work orders).
River City's sexual harassment policy provides that the harassed employee should object to the unwelcome conduct and ask the offender to stop. It also requires that sexual harassment be reported promptly to the employee's immediate supervisor or River City's equal employment opportunity officer. River City never provided a copy of its sexual harassment policy to Sumner and did not post it at the worksite.
Neither Childress nor McComb were part of the River City management and technically, neither had the authority to "hire, fire or discipline" workers, although as general foreman, Childress had the authority to remove her from the job and send her back to the union hiring hall. As union steward, McComb functioned as a ...